Who would have thought Hacked Off would come to the rescue of journalists?

Freedom of expression is a noble cause. It is also a battleground. What does it really mean and where are its boundaries?

Hacked Off has ridden to the rescue of journalists, much to the media's disgust, writes Crossley
Hacked Off has ridden to the rescue of journalists, much to the media's disgust, writes Crossley
One thing everyone seems to agree on is that for freedom of expression to work effectively and in the public interest, a journalist must be able to protect his or her sources.  

Without being able to guarantee confidentiality to a source, many important stories would simply not get off the ground.  

Such is the (near) unanimity of the support for the need for improved protection of sources, there has been something of a rumpus recently about who was behind the change in the law.  

I'll come back to that. 

I say near unanimity because if there is one organisation whose responsibility for the change of the law has come about only reluctantly, it’s Her Majesty's Constabulary.  

For it is the over-zealous police investigations into journalists' data in 34 separate cases and by 19 separate police forces that have brought about the changes.  

They had been quietly using the Regulation of Investigatory Powers Act 2000 (RIPA) to investigate the communications of journalists, including their communications with confidential sources.  

The journalists investigated included those reporting on the Andrew Mitchell plebgate scandal.  

The benefit of using RIPA is that the crime need not be particularly serious, and the investigating police officer simply needs to persuade a senior officer that the interception is proportionate to the benefit the data may have on the investigation.  

The amendment tabled by the Liberal Democrats to the Serious Crime Bill will mean that future requests for a journalist's communications data will have to be made to a judge.  

Media lawyers, like myself, have long accepted that there is no getting behind a journalist's source, no matter how central the source may be to the pursuit of a client's claim in defamation.  

The European Court of Human Rights, so regularly lambasted by newspapers, ruled in favour of this protection in the well-known case of Goodwin v United Kingdom.   

The Strasbourg-based court ruled that an attempt to force a journalist (by finding him or her in contempt of court) to reveal his or her source violated his or her right to receive and impart information, and that it would be detrimental to democracy to allow this inhibition to the right to freedom of information enshrined in Article 10 of the European Convention of Human Rights.  

Of course, this remains a balancing exercise and in some circumstances a judge may decide that it is in the public interest for the source to be identified, in particular, where a criminal offence may have been committed.

But these are decisions for independent judges, not senior colleagues, as had been the case with the police's use of RIPA. 

So, who is the champion of this important string to the bow of freedom of expression?  

Hugh Grant, in his Guardian article this week and later appearance on the Today programme, identified the Liberal Democrats, the Press Gazette and Hacked Off as the driving force behind the Serious Crime Bill.  

Certainly it seems as though each of these organisations has done important work on this issue.  

The national newspapers have reacted with disgust that Hacked Off, their great foe, should be taking the plaudits.  

It was us all along they say, and of course, freedom of expression is a cause close to editors' hearts.
But the protection of sources is not designed to benefit newspapers, editors or even journalists; it is, for the sources, the whistleblowers who stand to benefit.  

No matter who is responsible, a confidential disclosure to a journalist can now be made in the knowledge that there are no short-cuts in disturbing this important protection. 

Dominic Crossley is a partner at Payne Hicks Beach, specialising in privacy and media law

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